United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LAMB (Solicitor) Messrs Maitlands Solicitors 4 Brougham Street Greenock PA16 8AA


 


MRS JUSTICE SMITH: This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at Nottingham on 4 - 6 March 1998, whereby the Tribunal dismissed the Appellant's claim that the Respondent Company, his former employers, the Mansfield Shoe Group Plc, were in breach of his contract of service.

The Appellant was employed as a senior Personnel Manager from 22 May 1995. In March 1997 he was dismissed for redundancy following reorganisation of the Company and the closure of one of its factories. His employment contract terminated with effect from 28 March 1997. He was paid one month's notice. The Appellant immediately claimed that he was, in fact, entitled to three months' notice. He also claimed that the Respondent had failed properly to account for bonus payments, to which he was entitled, for his medical insurance contributions.

The Industrial Tribunal found that the Appellant had been entitled to only one month's notice and it is in respect of that finding that this appeal arises.

The Respondents produced and relied upon a letter dated 7 June 1995, taken from the Appellant's personnel file. This letter confirmed his appointment and set out the basic terms and conditions of his employment including the fact that he was entitled to one month's notice.

The Appellant's case was that sometime after his employment had begun, Mr England, who was then the Managing Director, but who had left the Company before March 1997, had agreed that he, the Appellant, should be entitled to three months' notice and had directed that a letter should be prepared to that effect which he, Mr England, had duly signed. The Appellant said that this letter had been handed to him by Mrs Anthony, a secretary, after Mr England had signed it and he had kept it at home. When he was told that he was to be dismissed and knew that the Company contended that he was only entitled to one month's notice, he produced the letter from his home. There was no copy of this second letter on the personnel file and before the Industrial Tribunal, Mrs Anthony denied ever having typed it. So did Mrs Petrie, another secretary employed by the Respondents.

The Respondents' case therefore, was that this letter had been produced by the Appellant himself and signed by Mr England, after Mr England had left the Company, possibly even after the dismissal, but in any event without the authority of the Respondent Company.

The Respondents instructed a document expert, a Mr Allen, who they hoped and expected would tell the Tribunal that the disputed letter could not have been produced on the Company equipment. However, it transpired when he examined the original letter, which had not been made available to him until the hearing was in progress, that he was unable to say whether or not that letter had been produced on the Respondents' equipment. His evidence was of no probative effect.

The Appellant, whose evidence had gone first, had called a computer expert called Mr Davies, but he had not examined either letter. He was permitted to give evidence, the relevance of which was not clear to the Tribunal and does not now appear to have been relevant to any issue before the Tribunal. In the event the Industrial Tribunal rejected the evidence of the Appellant and that of Mr England, who was called, and accepted the evidence of the Respondents, in particular Mrs Anthony and Mrs Petrie. They reached this conclusion without reference to any expert evidence, whether about printers or about computer equipment.

The Appellant sought a review which was rejected by the Chairman as having no reasonable prospect of success. In refusing the review, which raised issues similar to those raised on this appeal, the Chairman explained what had occurred in respect of the evidence of Mr Allen and Mr Davies, evidence which he had not mentioned in his main decision as it had been irrelevant to that decision.

The Appellant now seeks to appeal on three grounds.

First, he argues that the conduct of the hearing was unfair in that the Appellant wanted his expert Mr Davies to be permitted to cross-examine Mr Allen. The Appellant had written to the Tribunal in advance, seeking permission to be allowed to do this because he was a litigant in person and was not skilled in technical matters. This was not allowed. However, it is clear to us that no real complaint can be made about this. Mr Allen's evidence was of no probative value in any event. Therefore no cross-examination was necessary and it cannot have mattered who cross-examined him.

Second, the Appellant complains that the Industrial Tribunal did not let him speak about the suspect document, that is the second letter upon which the Appellant wished to rely, in order to show why it was not possible for him to have perpetrated a forgery. He was only permitted to pass the documents to Mr Allen for examination. He submits that he would have been able to explain in greater detail what could have been gathered from the document.

It was not at first clear to us what was meant by this ground of appeal, but Mr Lamb, who has appeared on behalf of the Appellant this morning, has explained to us that what Mr Swift wanted to say was that he believed that the machine on which the second letter had been printed had not been used by the Company after November 1996; therefore the letter must have been printed before that and at a time when Mr England was employed by the Company. However, that evidence of Mr Swift would, if it had been permitted to be given, have been expert evidence because Mr Swift was seeking to say that which the document experts could not say, namely that the letter had been printed on a particular machine. One can well understand why the Chairman refused to allow that evidence to be given by Mr Swift, if indeed he did.

The third written ground of appeal is no more than a repetition of the first.

This morning Mr Lamb has submitted on behalf of the Appellant, that it was wrong that Mr Davies should not have been permitted to give additional evidence after Mr Allen had given his evidence and had said that he was unable to say anything of assistance to the Respondents. Mr Lamb submits that had Mr Davies been recalled he would have said more than he had already said in his evidence and would have expressed a view about which machine the letter had been printed on. To prevent him from giving this evidence was unfair.

It appears to us that the Chairman was entitled to restrict the evidence in this way. Mr Davies had had a full opportunity to give evidence. He did not say which machine the letter had been printed on. Nor did Mr Allen. If Mr Davies was prevented from coming back to say that which he could have said at first, we do not think it could be described as unfair.

We are satisfied that there is no basis upon which the conduct of this hearing could be criticised and, for that reason, this appeal must be dismissed at this preliminary stage.